This extract from a Federal Court decision deals with the issue of how to calculate compensation for breaches of the general protections not involving a dismissal.
“Compensation
The Union submits that the 85 employees who worked on Christmas Day and Boxing Day should be awarded compensation for both economic loss and non-economic loss because of OS’ contraventions.
Section 545(1) of the FWA allows the making of any order “the court considers appropriate” if the court is satisfied that a person has contravened a civil remedy provision. Section 44 is a civil remedy provision. Section 545(2) provides the orders that may be made include an order awarding compensation, “for loss that a person has suffered because of the contravention”.
It is necessary to commence by identifying the contraventions that were determined to have occurred. The Full Court made a declaration that OS contravened s 44, “in respect of each of its production employees whom it required to perform work…by its contravention of s 114 of the FW Act in requiring those employees to work on 25 and 26 December 2019, which were public holidays”. The Full Court explained at [49]-[50] that:
- OS was not permitted to require employees to work on Christmas Day and Boxing Day, unless it had made a request in the manner contemplated by ss 114(2)-(3).
- The breach does not occur at the point of the request or requirement but rather at the point when, contrary to s 114(1), the employee “has to work” on the public holiday.
- The mere fact of the request or the imposition of a requirement, if the employee ignores it and does not work, does not lead to a contravention.
On the Full Court’s construction, whether the employer’s illegitimate action, namely imposing a requirement that an employee work on a public holiday, amounts to a contravention, depends upon the employee’s response to the employer’s action. In circumstances where the 85 employees in fact worked on Christmas Day and Boxing Day, OS’ requirement that they work on those days was a contravention of ss 44 and 114 of the FWA.
It is necessary for the applicant to establish a causal connection between the contravention of the FWA and the loss allegedly suffered: Australian Licensed Aircraft Engineers Association v International Aviation Service Assistance Pty Ltd (2011) 193 FCR 526 at [423]; Patrick Stevedores Holdings Pty Ltd v Construction, Forestry, Maritime, Mining and Energy Union (No 3) [2021] FCA 348; 304 IR 280 (Stevedores (No 3)) at [29]; Patrick Stevedores Holdings Pty Limited v Construction, Forestry, Maritime, Mining and Energy Union (No 4) [2021] FCA 1481 (Stevedores (No 4)) at [20]; Fair Work Ombudsman v Construction, Forestry, Maritime, Mining and Energy Union [2019] FCAFC 69 at [132].
In Stevedores (No 4) at [23], Lee J outlined three relevant questions in determining a claim for statutory compensation under s 545(1) of the FWA: first, whether a loss has been proved; second, whether the proved contraventions had a role in the happening of the loss; and third, whether the order for statutory compensation is appropriate.
In Fair Work Ombudsman v Construction, Forestry, Maritime, Mining and Energy Union (the Hutchison Ports Appeal) [2019] FCAFC 69, Ross J (with whom I agreed) observed at [132]:
Further, as is clear from s 545(2)(b) a necessary condition for the making of an Order for compensation is that loss is suffered because of the contravention. As Barker J put it in Australian Licenced Aircraft Engineers Association v International Aviation Service Assistance Pty Ltd (2011) 193 FCR 526 at [423], “this requires an appropriate causal connection between the contravention and the loss claimed”. (Also see Maritime Union of Australia v Fair Work Ombudsman and Skilled Offshore (Australia) Pty Ltd [2015] FCAFC 120 at [20]). It necessarily follows that any order for compensation is an order directed to compensating a person for such a loss. As Katzmann J observed in Shizas v Commissioner of Police ([2017] FCA 61 at [209]) the focus of such an order is “in a loose sense, the restoration of those affected by a contravention to the positions they would have occupied but for its occurrence”.
(Some citations omitted.)
There is no requirement that the contravention be the sole cause of the alleged loss and damage and it is sufficient to demonstrate the contravention is a cause of the loss: Stevedores (No 3) at [37] and [43].
In Aitken v Construction, Mining, Energy, Timberyards, Sawmills and Woodworkers Union of Australia — Western Australian Branch (1995) 63 IR 1, Lee J held at 9, that the Court will:
…have regard to what is reasonable in the circumstances and will look at what would have been likely to occur had the Act not been contravened. The Court will consider the detriment occasioned to the employee by the employer’s contravention of the Act, and the extent to which it is reasonable to compensate the employee for such consequences.
(Citation omitted.)
The first requirement for an award of compensation is that a loss of the kind claimed has been proved. In Malec v JC Hutton Pty Ltd (1990) 169 CLR 638 (Malec), Deane, Gaudron and McHugh JJ explained at 642-3 that a court determines on the balance of probabilities whether an event that is alleged to have occurred, has actually occurred. If the probability of the event having occurred is greater than it having not occurred, the occurrence is treated as certain. But in the case of an event which it is alleged would or would not have occurred, the Court assesses the degree of probability that the event would or would not have occurred and adjusts the award of damages to reflect the degree of probability.
In Maritime Union of Australia v Fair Work Ombudsman [2015] FCAFC 120 (Maritime Union), the Full Court was concerned with contraventions involving a union persuading an employer to only employ union members, where two persons who were not union members were thereby denied the opportunity of obtaining work. The union argued that the two persons would have been casual employees and therefore could only show loss if they could show they had lost particular jobs; and that their loss crystallised only upon being denied a particular casual contract. The Full Court rejected that approach, holding at [28]:
The task of the primary judge, having found the relevant contraventions, was to assess the compensation, if any, that was causally related to those contraventions. That involved not an examination of what did happen, but an assessment of what would or might have occurred, but which could no longer occur (because of the contraventions). Subject to any statutory requirement to the contrary, questions of the future or hypothetical effects of a wrong in determining compensation or damages are not to be decided on the balance of probability that they would or would not have happened. Rather, the assessment is by way of the degree of probability of the effects – the probabilities and the possibilities. The above proposition must be qualified by the recognition that, where the fact of injury or loss is part of the cause of action or wrong, it must be proved on the balance of probability. Compensation is generally awarded for loss or damage actually caused or incurred, not potential or likely damage; that is equally so here under ss 807(1)(b) and 545(2)(b).
(Citations omitted.)
The first step in considering the Union’s claim for the economic loss allegedly sustained by the 85 employees is to determine on the balance of probabilities whether there was any such loss. The Union never really explained the basis of the claim for economic loss, but presumably it is a claim that the 85 employees were not paid for the work they did on Christmas Day and Boxing Day, or were not paid the full amounts they were entitled to under the Award for working on those days.
However, OS’ standard contract provided that, “you may be required to work on public holidays and payment for this expectation has been incorporated into your existing remuneration”. I have found that OS’ employees were paid an annual salary which exceeded the amount payable under the Award, even on the improbable assumption that an employee would work as many as 10 public holidays in the year. I find the annual salary payable to each of the 85 employees fully compensated them financially for working on public holidays, including Christmas Day and Boxing Day. Accordingly, the Union has not demonstrated that the employees suffered any economic loss as a result of the contraventions.
Compensation for non-economic loss may be ordered under s 545(1), including for shock, distress, hurt or humiliation suffered because of a contravention of the FWA: James Cook University v Ridd (2020) 278 FCR 566 at [155]-[157].
The compensable loss or damage asserted by the Union is that the 85 employees worked on Christmas Day and Boxing Day, having been required to work by OS. The claim is that if not for the contraventions constituted by OS’ requirement that they work, the employees would have had no legal obligation to attend the worksite and perform work and in those circumstances they would not have done so. The asserted damage seems to consist of the unwilling presence of the employees at the worksite (away from their homes and families) and their unwilling exertions over the two days.
The Full Court held at [39] that, “an employee must accede to the request [to work] if it is reasonable unless the refusal is reasonable”. The Full Court continued, “a ‘request’ prompts a discussion or negotiation and the opportunity to refuse”. These passages confirm that an employee who is requested to work on a public holiday has no absolute entitlement to refuse, but rather that the employee must be offered an opportunity to refuse on the basis that the request is unreasonable or their refusal is reasonable.
I consider that the non-economic loss sustained by the 85 employees resulting from the requirement that they work on Christmas Day and Boxing Day is not appropriately characterised as the loss of an entitlement to not work. Instead, the appropriate characterisation is as the loss of the opportunity to refuse to work on those days by raising reasonable grounds for refusal.
The declaration that OS contravened s 114 of the FWA was apparently made on the basis that OS required the 85 employees to work on Christmas Day and Boxing Day and, using the language of the Full Court at [50], the employees then had to work. That amounted to a finding that the employees worked contrary to their wishes. It may be noted that the employees would not have been entitled to additional wages. Further, Christmas Day and Boxing Day fell at the very start of the employees’ roster period. There would have been no benefit to the employees in working on Christmas Day and Boxing Day. I infer that if OS had made a request, instead of imposing a requirement, each of the 85 employees would have sought to raise reasonable grounds for refusing to work.
I find, on the balance of probabilities, that by OS’ imposition of a requirement, the 85 employees were deprived of the opportunity to raise reasonable grounds for refusing to work on Christmas Day and Boxing Day. I find there was damage or detriment to the employees by the deprivation of that opportunity.
In accordance with the approach in Maritime Union at [28], it is necessary to make, “an assessment of what would or might have occurred, but which could no longer occur (because of the contraventions)”. This is usually referred to as a “counterfactual assessment”. The enquiry is as to the probability of the employees being able to raise reasonable grounds that would allow them to refuse to work on Christmas Day and Boxing Day.
At this stage it should be mentioned that seven of the 85 employees have provided affidavits deposing to particular circumstances that the Union submits would have made it reasonable for them to refuse any request to work. The remaining 78 employees have not provided any such affidavits. It is relevant to distinguish between the two groups of employees.
The 78 employees
OS’ submission is that since the 78 employees have provided no evidence bearing upon whether it would have been reasonable for them to refuse any request, it should be found there was no realistic prospect of demonstrating any reasonable grounds to refuse to work.
In my primary judgment, I found as follows at [182]:
The Union submits, and I accept, that traditionally in the coal mining industry, employees have been asked to volunteer, but have not been required, to work on Christmas Day and Boxing Day. It can also be accepted that Christmas Day and Boxing Day are traditionally regarded by the broader Australian community as days to be spent away from work, and to be spent with family. I accept that these matters distinguish Christmas Day and Boxing Day from other public holidays to some extent. I accept that for a requirement that employees work on Christmas Day and Boxing Day to be reasonable, a strong justification is required.
Those findings have not been challenged. In addition, I found at [159] that, many of the other 85 employees who worked on Christmas Day and Boxing Day, “would also have preferred to have had the opportunity to spend Christmas Day and Boxing Day with their families”. OS has admitted the substance of that finding in the Amended Agreed Statement of Facts. I consider these matters provide a basis for an argument that, in the counterfactual scenario, a refusal by the 78 employees to work might be considered reasonable.
Another matter relied on by the Union as going to the reasonableness of a refusal, is that OS’ motivation for having the employees work on Christmas Day and Boxing Day was purely for the purpose of profit. The Union contrasts the position with that of an emergency services employer whose employees are required to work for reasons of community health and safety. I accept there is some merit in the Union’s argument.
OS relies on the fact that on 13 and 14 December 2019, the employees were told that if they had special circumstances, they could raise them for consideration. OS submits that the 85 employees did not raise such circumstances, indicating that they could not reasonably have refused to work. However, s 114(3) requires only a reasonable basis for a refusal to work, not special circumstances. Further, the fact that the opportunity was belatedly given, only shortly before Christmas Day, when plans were likely to already have been made by many of the employees, detracts from the submission.
On the other hand, the employees were given notice before they accepted employment with OS that they were expected to work on public holidays falling within their ordinary rosters. Further, the employees were paid for working on public holidays. Those matters suggest that it might not have been reasonable for them to have refused to work.
The Union relies on Logan J’s construction of cl 29.5 of the Award in Mining and Energy Union v OS ACPM Pty Ltd [2025] FCA 200, to submit that the refusal of a request to work would have been reasonable. His Honour made a declaration that the clause required OS to operate a roster of no more than 363 days a year (or 364 in leap years) and held at [48] that, in doing so, OS was required to provide at least two public holidays per year on which employees were not, collectively, to be rostered to work. However, his Honour also expressed the opinion that the two days were not required to be Christmas Day and Boxing Day. The Union’s argument does not preclude the possibility that a refusal of a request to work on Christmas Day and Boxing Day could have been unreasonable.
I am satisfied that if the 78 employees were requested to work on Christmas Day and Boxing Day, there was a substantial chance they could have demonstrated that it was reasonable to refuse to work. In Malec at 640, Brennan and Dawson JJ considered it undesirable for damages to be assessed on the footing of an evaluation expressed as a percentage, since damages founded on hypothetical evaluations defy precise calculation. I will adopt that approach.
I have not overlooked the Union’s argument that the employees also lost the opportunity to refuse to work on Christmas Day and Boxing Day on the basis that any request to work made by OS would have been unreasonable. However, I consider there was a negligible chance that merely asking the employees to work could have been considered unreasonable where, relevantly, the employees were given notice before they accepted an offer of employment that they were expected to work on public holidays falling within their ordinary rosters and accordingly, were paid an annualised salary which reflected penalty rates payable under the Award for working on public holidays, including Christmas Day and Boxing Day. I will not factor any loss of this opportunity into my assessment of compensation.
A starting point for assessing compensation for non-economic loss is the value of the work done on Christmas Day and Boxing Day. That value can be measured by the Award wages payable for working on those days.
The Union provided a schedule showing that the Award wages for the work on Christmas Day and Boxing Day were $1,596.55 for one category of employees and $2,157.50 for the second category. In respect of the 78 employees, I consider that it is appropriate to award each employee in the first category compensation for non-economic loss in the amount of $800 and each employee in the second category compensation for non-economic loss in the amount of $1,100. Those amounts are inclusive of interest. These amounts take into account the loss of opportunity to avoid their exertions and to spend recreational time in a manner of their choosing.
I will turn to consider the remaining seven employees who worked on Christmas Day and Boxing Day.
The seven employees are Mr Toomey, Ms McKean, Mr Requejo, Mr Mulry, Mr McDonald, Ms Brady and Ms Evers. Each of these employees provided an affidavit explaining why they wanted to spend Christmas Day with their families and the emotional impact of not being able to do so. Each of them has, in effect, set out the grounds for the refusal to work on Christmas Day and Boxing Day that they would have raised as being reasonable if given the opportunity to do so by OS, thereby distinguishing their positions from the other group of 78 employees.
The seven employees were not cross-examined and I accept their evidence. At the same time, I found in my previous decision at [177] that before accepting their employment, prospective employees were notified that they may be required to work on public holidays and were consistently reminded of that requirement after they commenced their employment. Their contracts stated that their renumeration reflected an expectation that they could be required to work on public holidays. Therefore, being told they were required to work on Christmas Day and Boxing Day could not have come as a shock.
Mr Toomey
Christmas was a day of religious significance for Mr Toomey, who would attend church with his parents. Mr Toomey’s father had recently passed away and Christmas Day in 2019 was to be his family’s first Christmas without his father. His mother also had a fall in about October 2019 and had broken her pelvis. Mr Toomey had cared for her, nursing her through her injury and assisting her to recover from grief.
When Mr Toomey told his mother OS required him to work on Christmas Day, he saw that she was “shattered”. Mr Toomey says he was wracked with guilt for many months leading up to Christmas, knowing he would not spend this special day with his family and, in particular, his elderly mother. He says he felt powerless, sad and anxious and commenced drinking alcohol to wind down.
Mr Toomey’s mother passed away in March 2020. He says he was, and remains, devastated to have missed the opportunity to spend her last Christmas together. He continues to feel guilt and a deep sadness. He feels resentment towards OS for depriving him of the opportunity to spend his last Christmas with his mother.
It is appropriate to award Mr Toomey $1,700 for non-economic loss.
Ms McKean
Ms McKean is a single mother and the sole breadwinner for her two daughters. In late 2019, they were aged 11 and 15. Ms McKean had no family to assist her in caring for her children on Christmas Day. She was compelled to find someone from her children’s drama class to care for her children, and pay that person $500 to do so.
Ms McKean found this demeaning and heartbreaking. She found it devastating leaving her girls, who were distressed and asked her not to go. Ms McKean felt as if she had failed her daughters and remains upset when she thinks about what happened.
It is appropriate to award Ms McKean $1,700 for non-economic loss. OS accepted that she should also be awarded $500 for the cost of childcare, plus $200 in interest.
Mr Requejo
Mr Requejo states that he is a man of strong religious beliefs and that religion is inextricably linked to his cultural and family traditions.
Mr Requejo moved to Australia from the Philippines around 25 years ago. He has few opportunities throughout the year to spend time with his extended family. Christmas is a special opportunity each year for Mr Requejo and his wife to spend time with their family and participate in religious and cultural events of importance to them. It also presents an opportunity for them to instil in their now adult children a connection to their religion, Filipino culture, history and extended family.
It is appropriate to award Mr Requejo $1,400 for non-economic loss.
Mr Mulry
By reason of being required to work on Christmas Day and Boxing Day 2019, Mr Mulry missed out on spending Christmas with his 11-year-old daughter, causing him to be upset. He felt like he had let her down as a father. Mr Mulry states that his daughter’s devastated face when he told her he was required to work and could not spend Christmas with her is seared on his mind.
It is appropriate to award Mr Mulry $1,400 for non-economic loss.
Mr McDonald
Mr McDonald is a single father. His then six-year-old daughter lives in New Zealand. As Mr McDonald was required to work, he had no choice but to miss spending Christmas Day with his daughter. He deeply regrets this and says it plays on his conscience that he missed out on such a special day with his young daughter. He felt and continues to feel that he let her down.
It is appropriate to award Mr McDonald $1,400 for non-economic loss.
Ms Brady
Ms Brady says that Christmas was everyone’s favourite holiday in her family. Ms Brady was on night shift on Christmas Day and was able to spend time with her family until 1.30 pm before heading to her shift. She was required to leave her family Christmas celebrations early. This upset her and her family members, particularly her father. Ms Brady had tears in her eyes going to work. She felt frustrated and upset throughout her shift.
It is appropriate to award Ms Brady $1,400 for non-economic loss.
Ms Evers
Christmas was an important and special day for Ms Evers and her family. Ms Evers is Catholic and would attend midnight mass with her parents before having Christmas Day celebrations with her extended family.
Ms Evers was upset at missing Christmas Day in 2019 and continues to regret missing out on this special family and religious occasion with her parents and extended family.
It is appropriate to award Ms Evers $1,400 for non-economic loss.
Penalty
The principles guiding the imposition of civil penalties are set out in Australian Building and Construction Commissioner v Pattinson (2022) 274 CLR 450. They were succinctly summarised by Wheelahan J in Fair Work Ombudsman v Roach (The Melbourne Quarter Case) [2023] FCA 781 at [13] as follows:
(1) The purpose of the civil penalty regime under the FW Act is primarily, if not solely, the promotion of the public interest in compliance with provisions of the Act by the deterrence of further contraventions of the Act.
(2) Reflecting the text of s 546 of the FW Act, the Court’s task is to determine what it considers to be an “appropriate” penalty in a particular case. A penalty should not be greater than is necessary to achieve the object of deterrence, and severity beyond that would be oppression. An appropriate penalty is one that strikes a reasonable balance between oppressive severity and the need for deterrence in respect of the particular case.
(3) The assessment of an appropriate penalty may be informed by the factors listed by French J in Trade Practices Commission v CSR Ltd (1991) ATPR 41-076 at 52,152-3 to the extent that those factors relate to deterrence. However, that list is not a rigid catalogue of matters for attention as if it were a legal checklist. Account of the factors listed by French J in CSR, such as an expression of genuine remorse, may moderate the penalty that is appropriate to protect the public interest by deterring future contraventions of the FW Act.
(4) Some concepts familiar from criminal sentencing, such as totality, parity, and course of conduct may assist in the assessment of what may be considered reasonably necessary to deter further contraventions of the FW Act.
(5) The maximum penalties provided for by the FW Act are not reserved for the worst cases. Rather, what is required is that there be some reasonable relationship between the theoretical maximum and the final penalty imposed viewed through the lens of achieving the deterrence which is the purpose of the FW Act civil penalty regime.
(6) In some cases, the circumstances of the contravener may be more significant to the assessment of an appropriate penalty than the circumstances of contravention, because, all other things being equal, a greater financial incentive will be necessary to persuade a well-resourced contravener to abide by the law rather than to adhere to its preferred policy than will be necessary to persuade a poorly resourced contravener that its unlawful policy preference is not sustainable.
There was also a recent exposition of the principles by Lee J in Transport Workers’ Union of Australia v Qantas Airways Limited (Penalty) [2025] FCA 971 at [23]-[32], which I will not repeat.
The Union concedes that, pursuant to s 557(1) of the FWA, OS’ 85 contraventions must be taken to constitute a single contravention as they were committed by the same entity and arose out of the same course of conduct.
The parties are agreed that the maximum penalty that may be imposed on OS is $63,000.
The Union seeks the imposition of a penalty of 70-90% of the maximum penalty, being between $44,100 and $56,700.
The reasons provided by the Union for the appropriateness of this penalty include:
- The contravening involved 170 separate contraventions of s 44 of the FWA and affected 85 employees;
- The course of conduct was protracted with the unlawful requirement initially being imposed in August 2019;
- OS was acting in its self-interest and profited from its contraventions;
- The contravening was deliberate with the OS put on notice from 5 December 2019 that it could not require the affected employees to work on the public holidays;
- An inference can be drawn that senior management was involved in the contraventions because of the imposition of an unlawful requirement; and
- OS have since exhibited no contrition or cooperation.
The Union submits that specific and general deterrence are highly relevant to the assessment of any penalty given the contravention involves a breach of the National Employment Standards and that employers should “be sent a strong message” that such conduct will be met with a financially significant penalty. Given the substantial size and resources of OS, the Union submits a higher penalty is required to achieve specific deterrence, particularly as OS continues to operate as a significant employer within the BHP group.
OS submits a penalty of no more than 20% of the maximum, being $12,600, would be appropriate where:
- There is no evidence that the contravening conduct was deliberate in circumstances where OS acted in accordance with what it considered to be the proper construction of s 114 of the FWA and where that interpretation was not unreasonable;
- OS acted in reliance on the employment contracts entered into by the relevant employees which provided notice that the employees may be required to work public holidays and that their remuneration was set at a level which incorporated payment for work performed on public holidays;
- OS has since changed its processes in accordance with the Full Court decision to ensure it complies with the correct construction of s 114; and
- OS has provided an unreserved apology to its employees for the contravening conduct and submits that, given any “corrective action” is the subject of dispute in this proceeding, it cannot be viewed as an absence of contrition.
OS submits that the need for specific and general deterrence is low in circumstances where guidance has now been provided by the Full Court as to the proper construction of s 114 and there is no evidence that OS has continued to act in contravention of the provision.
I accept that OS’ contraventions of s 114 of the FWA arose from a genuine and reasonable but mistaken construction of that provision. OS notified the employees before they accepted their employment that they would be required to work on public holidays and paid them a level of remuneration reflecting an expectation that they would work on public holidays which fell within their rosters, including Christmas Day and Boxing Day. I accept that OS considered that, in these circumstances, it was entitled to require its employees to work on Christmas Day and Boxing Day.
I find that OS did not deliberately contravene s 114 and, in fact, its (wrong) understanding was that it was acting in conformity with that provision, having regard to the employment arrangements that had been put in place.
It can be accepted that OS was put on notice that the Union considered OS could not require the employees to work. OS was aware that there was a contestable issue involved. The safer course would have been for OS to seek a declaration as to whether it was entitled to require the employees to work on Christmas Day and Boxing Day. It appears to be OS’ recognition of its failure to do so which has, at least in part, led to its concession that it is appropriate for a penalty to be imposed.
It is true that OS has contested the proceeding to the end and, in doing so, has not demonstrated contrition that might otherwise have been relevant to assessing the need for specific deterrence. However, OS has provided an apology to its employees in the wake of the Full Court’s decision, which does demonstrate some belated contrition.
The contraventions can be regarded as more serious by reason of the significant number of employees who were affected. I also accept that senior management of OS was involved in the contraventions.
It is not in dispute that OS has substantial resources which demonstrates a need for a greater penalty to achieve deterrence. However, in light of the Full Court’s decision, it seems most unlikely that OS would engage in similar contravening conduct again. In fact, its procedures have now been changed so that employees are requested to work on public holidays, given the opportunity to refuse and to have their reasons for refusal considered. That limits the need for specific deterrence.
The Full Court’s decision also makes it less likely employers generally will engage in similar contraventions, lessening the need for general deterrence.
In the circumstances, I consider it appropriate to impose a penalty of $15,000 on OS. will order that the penalty be paid to the Union, in accordance with the usual practice.”
Mining and Energy Union v OS MCAP Pty Ltd (No 3) [2025] FCA 1372 delivered 1 November 2025 per Rangiah J